Loielo v Giles

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 03608

MICHELLE LOIELO	Plaintiff
v
ASSOCIATE PROFESSOR MICHELLE GILES (in her capacity as Deputy Public Health Commander as authorised to exercise emergency powers by the Chief Health Officer under section 199(2)(a) of the Public Health and Wellbeing Act 2008 (Vic))	Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	29-29 September, 1-2 October 2020
DATE OF JUDGMENT:	2 November 2020
CASE MAY BE CITED AS:	Loielo v Giles
MEDIUM NEUTRAL CITATION:	[2020] VSC 722 First Revision: 21 December 2021

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JUDICIAL REVIEW – COVID 19 Pandemic – State of emergency – Directions by authorised officer – Stay at Home Directions - Whether power to impose Curfew – Whether plaintiff had standing - Whether authorised officer acted at the direction or behest of the Premier – Whether Curfew decision unreasonable, irrational or illogical – Public Health and Wellbeing Act 2008 ss 4, 5, 6, 7, 8, 9, 10, 11, 111, 197, 198, 199, 200.

HUMAN RIGHTS – COVID-19 Pandemic - Stay at Home Restrictions – Curfew – Right of freedom of movement – Right to liberty – Whether restrictions on rights proportionate – Whether less restrictive means reasonably available – Whether act of imposing Curfew incompatible with human rights – Whether proper consideration given to human rights in making Curfew decision – Plaintiff’s standing to bring Charter claims – Charter of Human Rights and Responsibilities Act 2006 ss 7(2), 12, 21, 38, 39.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Clarke QC with Ms V Plain and Dr J Harkess	NOH Legal
For the Defendant	Ms K Walker QC, Solicitor-General for the State of Victoria with Mr J Pizer QC, Mr E Nekvapil, Ms S Fitzgerald and Mr T Wood	Victorian Government Solicitor’s Office

HIS HONOUR:

Summary

1 This proceeding concerns the legality of a 9:00 pm to 5:00 am curfew, binding all people living in ‘greater Melbourne’,[1] imposed by a direction made to combat the COVID-19 pandemic (Curfew). It was contained in the Stay at Home Directions (Restricted Areas) (No 15), which was one of eleven directions, signed by the defendant, Associate Professor Michelle Giles (Giles), an authorised officer and senior medical adviser in the Department of Health and Human Services (the Department) on 13 September 2020 (Directions). It was made under statutory powers exercisable only when a State of Emergency is in effect in Victoria. The effect of the Curfew was that residents of the Restricted Areas could not leave their home between those hours, except for specified purposes, under penalty of a significant fine. I will call the relevant Direction the Curfew Direction because, although the Directions contained a number of restrictions, the plaintiff, Ms Michelle Loielo only challenges the Curfew, which on her case, was ‘a step too far’. An 8:00 pm to 5:00 am Curfew had been introduced on 5 August at the peak of the second wave of COVID-19 infections, so the Directions of 13 September contained a modification of that initial Curfew, as well as a lessening of other restrictions. It is necessary to keep in mind that the Curfew was only one part of the Stay at Home Directions and there were other restrictions, such as the four permitted reasons for leaving home and the ‘ring of steel’ between greater Melbourne and the rest of Victoria.
[1]‘Greater Melbourne’ included 28 Cities and three Shires, one of which was Mornington Peninsula Shire.

The Curfew was a major restriction of human rights and liberties of the free people of Victoria. No instance of a curfew being imposed in Victoria by the Executive exists in living memory. Curfews are normally imposed to control civil disturbances and widespread outbreaks of lawlessness.

This proceeding was given an urgent hearing and was listed to commence on Monday, 28 September. The day before, on the Sunday, at a media conference, the Premier of Victoria, Mr Daniel Andrews, announced the end or revocation of the Curfew with effect from the following day, which was the first day of the court case, because the public health team considered that it was no longer a proportionate measure. In those circumstances, the case commenced on the Monday as a challenge to Associate Professor Giles’ decision to direct or order the continuation of the modified Curfew on 13 September even through it had been revoked. I refused the defendant’s application, made following the revocation of the Curfew, to have particular issues determined as preliminary issues, including the plaintiff’s standing and the availability of declaratory remedies and Charter remedies to her.

The plaintiff, Ms Michelle Loielo, owns a restaurant in Rosebud West and says that her business income was drastically reduced following the Stay at Home Directions and since the introduction of the Curfew. I have decided that Ms Loielo had standing to bring the proceeding because of the effect of the Curfew on her business.

Ms Loielo’s challenge to the Curfew Direction commences with the argument that Associate Professor Giles’ decision was made at the direction or behest of the Premier, Mr Daniel Andrews, and was not an independent decision. Ms Loielo also contends that the decision was unreasonable, illogical and irrational in the legal sense. Finally, she contends that the decision unlawfully limited her human rights which are recognised by the Victorian Charter of Human Rights and Responsibilities,[2] especially her rights of freedom of movement and to liberty.
[2]Charter of Human Rights and Responsibilities Act 2006 (Vic) (The Charter).

Although, Ms Loielo is the only plaintiff in the proceeding, the Curfew affected the human rights of all residents in the Restricted Areas.

Associate Professor Michelle Giles is an infectious diseases physician, whose work has included reviewing outbreaks of COVID-19 infections. The eleven Directions had to be made by the end of Sunday 13 September, when existing Directions expired. Both parties argued the case on the basis that Giles had to make an independent decision exercising the powers and discretions conferred by the emergency powers. She signed the Directions on the Sunday evening. She had joined the Department on 3 August and was only appointed an authorised officer, who could exercise emergency powers,[3] on the Friday of the week concerned, two days before she made the Directions. She was appointed to fill in for a another officer, who was going on leave. Giles had never made directions under the emergency powers before and has not since. She had not been part of the discussions in the Department’s Public Health Unit, which apparently initiated directions. I say apparently, because the Department’s organisational structure was unclear from the evidence and a chart could not be provided showing the departmental line of command of persons with responsibilities to make directions. Giles was appointed an authorised officer by Adjunct Clinical Professor Brett Sutton, who is the Chief Health Officer. It was unclear why Giles was chosen or why, for instance, Sutton did not make these Directions himself. There was evidence of uncertainty of who had decided to introduce the Curfew in the first instance in August and on what basis it had been decided to introduce it. This uncertainty was despite the empowering legislation requiring that regard be had in its administration to the principle of accountability and that persons engaged in the administration of the legislation should as far as was practicable ensure that decisions are transparent, systematic and appropriate.[4]
[3]Public Health and Wellbeing Act 2008 (Vic), pt 10 (PHW Act).
[4]Ibid s 8.

Earlier, on the morning of Sunday 13 September, at a media conference, Mr Andrews, announced that the Curfew would continue, but would be modified. Chief Health Officer Sutton took part in that media conference. Mr Andrews’ announcement about the Curfew occurred hours before Giles made her decision on Sunday evening. In the particular circumstances of this case, that announcement could have resulted in Giles considering that she should just follow and adopt the announcement rather than making an independent decision. Under the law, Giles, as the authorised officer, had the power to make the decision and not anyone else. That is not to say that she could not discuss the decision she was to make with Department staff and medical and other relevant officers, but she had to make an independent decision, as both parties accepted.

Prior to the Sunday morning media conference, there had been media speculation about who had made the decision to introduce the Curfew and why. The Chief Health Officer and the Chief Commissioner of Police had apparently denied that it was their decision.

The importance of the person with legal authority not only making the decision, but being seen to make it, is not just a point of procedure. Far more importantly, it is about the legal principle that the person who has the legal authority to exercise extraordinary statutory power in times of emergency, in this case Giles, actually exercises it. When basic human rights such as freedom of movement are being restricted, it is particularly important that legal procedure is followed. Thus, in the case of the New Zealand lockdown restrictions, the New Zealand Prime Minister on 23 March 2020 announced extensive lockdown restrictions confining people to their homes from 25 March, when the Director-General of Health, who actually possessed the power to make such orders under the empowering legislation, only made such orders nine days later on 3 April. The New Zealand High Court accepted that ‘there was for nine days an unlawful limitation of certain rights and freedoms, that must be seen in the context of the rapidly developing public health emergency that the nation was facing’[5] and granted declaratory orders to the plaintiff.[6]
[5]Borrowdale v Director-General of Health [2020] NZHC 2090, [290] (Thomas, Venning and Ellis JJ)
(Borrowdale).
[6]The Court dismissed challenges to the orders made on 3 April and later orders.

The evidence suggests that in Victoria, directions are usually prepared by the Department’s Public Health Unit and circulated to stakeholders such as the ‘Crisis Council of Cabinet’, the Premier’s Office and the Minister’s office and are approved or signed off by the Chief Health Officer, who may be present when the Premier announces the directions or their modification. So the Premier, or his office, may be aware of the proposed directions before they are signed. But the present case did not follow that path in important respects. It was not the Chief Health Officer, who had made, or was to make, the directions, or someone who had made them previously, but Associate Professor Giles, who the parties accepted had to make an independent decision. The decision to make the Directions had to be her independent decision, as she was the authorised officer and decision-maker given that power. The defendant’s defence to Ms Loielo’s case was that Associate Professor Giles was the decision-maker and made an independent decision although she had not been part of discussions that had led to the drafting of the Directions. Giles gave evidence that she had been told that if she did not approve the Directions they would be ‘escalated’ to a more senior person in the Department for their decision.

There was no evidence that Mr Andrews personally told Associate Professor Giles the Direction he wished her to make about the curfew, or that he knew that she was the officer to make the Directions on 13 September. On the evidence, the plaintiff’s first ground depends on the argument that, in the circumstances of the case, Giles acted to give effect to Mr Andrews’ announcement and that, her decision was, in reality, the Premier’s decision. I should mention at this point, that Mr Andrews was not a party to, or a witness in, this proceeding and therefore has not given evidence of the procedures adopted in the approval of the Curfew Direction or why he announced the Curfew’s continuation as modified before the Directions had been approved or signed by the authorised officer, Giles. So under legal procedure no finding adverse to him on the issue that he personally directed Giles in the making of her decision could be, or is, made. But, at the same time, because Ms Loielo’s first ground of challenge is that Giles acted at the direction or behest of Mr Andrews, it is necessary to make findings on the evidence before the Court about whether she did so, in the sense that she sought to implement his announcements.

There can be legitimate debate about whether a public servant in Giles’ position, who is not the Minister, the Department Secretary or the Chief Health Officer, should be exercising an emergency executive power that may close down much of the State. One argument would be that such a decision should be made by the Minister, who is responsible to Parliament and therefore to the public, acting on health and other relevant advice, including as to the effect of the Direction on the economic or social life of the State. That is not to suggest that Giles lacked experience or qualifications in dealing with infectious diseases. But, these are not academic questions, they are relevant to the plaintiff’s first ground, whether Giles acted at the direction or behest of Mr Andrews.

Apart from this first ground, the dispute between the parties is whether there was a justification for the Curfew and its limitation on human rights. It had already been in place as an 8:00 pm to 5:00 am curfew since 5 August and the plaintiff argued that there was no evidence that the Curfew stopped any case of COVID-19 infection. On the other hand, Giles said that the Curfew was part of a package of measures introduced at a time of high infection rates that, by 13 September, had reduced that rate, including by reducing the movement of people, which is an important way to reduce infection rates.

The Court’s role in this proceeding is to exercise its judicial review powers to determine whether Associate Professor Giles, acting as a member of the Executive, exercised the emergency powers to order a curfew in accordance with law. Even in an emergency, Victoria is a society of laws and any executive decrees must be made in accordance with law.

The plaintiff contended that the powers on which Giles relied did not give her, or anyone else, power or authority to order a curfew across much of Victoria. I have ultimately accepted the defendant’s submissions that such power did exist in a state of emergency. I was advised by the parties after judgment had been reserved that a number of the legislative provisions that provide safeguards in the use of the emergency powers had been suspended by Ministerial Declaration made under the Emergency Management Act 1986 (Vic) because the Minister[7] was satisfied that the provisions ‘would inhibit response’ to the Coronavirus (COVID-19) pandemic. They had been replaced by Ministerial Directives that appear to contain, at least, most of the requirements of the legislation. No submissions were made about whether this step was really envisaged by the legislation in the case of a widespread lockdown and curfew. Because, the matter was only raised after the conclusion of argument, it is not appropriate that I express any view on this important question. But, I do not consider that the Ministerial Directives affect the determination of the issue of whether the emergency powers gave Giles power to make directions for a curfew.
[7]Minister for Police and Emergency Services.

Human rights are of importance even in urgent or emergency situations, if governments and executives can disregard them, they are not rights of any real value. Garde J said of a decision-maker’s duty to consider human rights:

[I]n an emergency or extreme circumstance, or where critical decisions have to be made with great haste, there are grave risks that human rights may be overlooked or broken, if not life or limb endangered. The existence of an emergency, extreme circumstances or haste confirms, not obviates, the need for proper consideration to be given to relevant human rights. In the absence of statutory provision to the contrary, s 38(1) of the Charter will operate to require proper consideration to be given by public authorities to relevant human rights in emergencies or extreme circumstances or where great expedition is required in decision-making.[8]

[8]Certain Children (by their litigation guardian, Sister Marie Brigid Arthur) v Minister for Families and Children (2016) 51 VR 473, 508 [188] (citations omitted)).

In the recent New Zealand case to which I have referred, the High Court stated:

Even in times of emergency, however, and even when the merits of the Government response are not widely contested, the rule of law matters.
...
Although the state of crisis during those first nine days goes some way to explaining what happened, it is equally so that in times of emergency the courts’ constitutional role in keeping a weather eye on the rule of law assumes particular importance. For these reasons we conclude that it would be appropriate to make a declaration.[9]

[9]Borrowdale [2020] NZHC 2090, [2], [291].

Ms Loielo’s first ground, that Giles acted at Mr Andrews’ direction or behest, ultimately involves a question of fact. As previously mentioned, deciding whether Giles actually made an independent decision was complicated by the fact that on 13 September, the day when she signed the Directions, Mr Andrews had already announced, in effect, that the Curfew, as modified, would continue. Ms Loielo contended that it was implausible that Giles could make an independent decision in view of Mr Andrews’ announcement that Sunday morning. But, Giles gave detailed evidence that she did make an independent decision and explained her reasoning, I accept that she did so. Her evidence is supported by emails of the Sunday afternoon in which she discussed her consideration of the Curfew, in terms similar to her evidence given to the Court. The plaintiff’s first ground therefore does not succeed.

Grounds two and three, the unreasonable, illogicality and irrationality grounds do not succeed, as Giles’ decision to continue the modified Curfew was within the range of reasonable decisions that could have been made.

Ground four raised issues under the Charter about whether Ms Loielo’s human rights to freedom of movement and to liberty had been unlawfully limited by the Curfew. The Curfew limited her rights to freedom of movement and those of about 5 million other people living in the Restricted Areas. The legality of the limitation and restriction then depends on whether Giles’ evidence established that the restrictions or limitations were reasonably proportionate to the objective of protecting public health. Ultimately, I have decided that, taking into account the purpose of the emergency powers and the temporary duration of the Curfew, that Giles’ evidence has established that the limitation of, and restrictions on, human rights caused by the Curfew were, at least in the case of the plaintiff, proportionate to the purpose of protecting public health. Giles’ evidence established that in the emergency circumstances presented by the second wave of the pandemic, that there were no other reasonably available means to achieve that purpose. She was the only witness called and therefore there was no countervailing or conflicting medical evidence. I am also satisfied that Giles gave the relevant human rights real consideration in approving the Directions. Ground four is therefore not established.

Ms Loielo’s proceeding therefore does not succeed and must be dismissed.

The plaintiff’s case

The plaintiff seeks a declaration that the Curfew made pursuant to the PHW Act was unlawful and invalid on judicial review grounds, being: that the Direction was made under the Premier’s direction; that it was unreasonable, illogical or irrational; and, that it unlawfully limited the plaintiff’s human rights, to freedom of movement and of liberty, recognised by the Charter.

The Curfew Direction was made by the defendant. She was the only witness called to give evidence in the trial and was cross-examined on her affidavits. The plaintiff did not call any expert or medical evidence about the need for the Curfew.

Neither the Victorian Equal Opportunity and Human Rights Commission or the Victorian Attorney-General chose to exercise their statutory rights of intervention given by the Charter.

In her first affidavit, made while the Curfew was in force, the plaintiff, Ms Loielo, stated that she owns a restaurant at Rosebud West on the Mornington Peninsula. She said that the Stage 4 restrictions put her business under significant pressure; she laid-off staff and wound back trading. She worked every day for between 12 and 15 hours, part at home and part at the restaurant. During the Curfew her revenue and turnover dropped over 90% from between $5,000 and $20,000 to just $400 in the week commencing 6 September 2020 and the restaurant is now running at a loss. The early closure of other shops in the area, including supermarkets, meant that she could not obtain food supplies required for some customers’ orders.

Ms Loielo is a widow and the primary caregiver of her, and her late husband’s, three school-aged daughters. She lives alone, but near to her parents. She has no other family in Australia. She feared that she may not be able to care for her children or lose her house if the situation continued.

She described the significant stress she was experiencing when the Curfew was in force. She struggled to balance the management of the restaurant with home schooling and caring for her children’s needs. Her observation of her children’s stress and the toll on them adversely affected her. She was not able to socialise or exercise, or see her parents, and her health declined. She described her social isolation as ‘unbearable’ and she had been unable to see her parents, who used to help care for her children. She could no longer go for an evening walk after she finished work.

Upon the lifting of the Curfew, Ms Loielo made a second affidavit confirming that she was continuing with this proceeding. She said she felt a sense of relief, that a weight had been lifted and no longer ‘felt trapped at home’. She said that she ‘felt normal again, like a piece of [her] life had been given back to [her]’. She remained concerned that the Premier would reintroduce a curfew. She anticipated trade at her restaurant would pick up, including during the hours previously affected by the Curfew.

Legislation

The provisions of the PHW Act of relevance are:

1 Purpose
The purpose of this Act is to enact a new legislative scheme which promotes and protects public health and wellbeing in Victoria.

4 Objective
(3) It is the intention of Parliament that in the administration of this Act and in seeking to achieve the objective of this Act, regard should be given to the guiding principles set out in sections 5 to 11A.

5 Principle of evidence based decision-making
Decisions as to—
(a)the most effective use of resources to promote and protect public health and wellbeing; and
(b)the most effective and efficient public health and wellbeing interventions—

should be based on evidence available in the circumstances that is relevant and reliable.

6 Precautionary principle
If a public health risk poses a serious threat, lack of full scientific certainty should not be used as a reason for postponing measures to prevent or control the public health risk.

7 Principle of primacy of prevention
(1)The prevention of disease, illness, injury, disability or premature death is preferable to remedial measures.
(2)For that purpose, capacity building and other health-promotion activities are central to reducing differences in health status and promoting the health and wellbeing of the people of Victoria.

8 Principle of accountability
(1)Persons who are engaged in the administration of this Act should as far as is practicable ensure that decisions are transparent, systematic and appropriate.

(2) Members of the public should therefore be given—
(a)access to reliable information in appropriate forms to facilitate a good understanding of public health issues; and
(b)opportunities to participate in policy and program development.

9 Principle of proportionality
Decisions made and actions taken in the administration of this Act—
(a)should be proportionate to the public health risk sought to be prevented, minimised or controlled; and

(b) should not be made or taken in an arbitrary manner.

10 Principle of collaboration
Public health and wellbeing, in Victoria and at a national and international level, can be enhanced through collaboration between all levels of Government and industry, business, communities and individuals.

11 Principles applying to Part 8
Section 111 specifies the principles that are to apply for the purposes of the application, operation and interpretation of Part 8.

111 Principles
The following principles apply to the management and control of infectious diseases—
(a)the spread of an infectious disease should be prevented or minimised with the minimum restriction on the rights of any person;
(b)a person at risk of contracting an infectious disease should take all reasonable precautions to avoid contracting the infectious disease;
(c)a person who has, or suspects that they may have, an infectious disease should—
(i)ascertain whether he or she has an infectious disease and what precautions he or she should take to prevent any other person from contracting the infectious disease; and
(ii)take all reasonable steps to eliminate or reduce the risk of any other person contracting the infectious disease;

(d)a person who is at risk of contracting, has or suspects he or she may have, an infectious disease is entitled—
(i)to receive information about the infectious disease and any appropriate available treatment;
(ii)to have access to any appropriate available treatment.

200 Emergency powers
(1) The emergency powers are—
(a)subject to this section, detain any person or group of persons in the emergency area for the period reasonably necessary to eliminate or reduce a serious risk to public health;
(b)restrict the movement of any person or group of persons within the emergency area;
(c)prevent any person or group of persons from entering the emergency area;
(d)give any other direction that the authorised officer considers is reasonably necessary to protect public health.

(2)Unless subsection (3) applies, before any person is subject to detention under subsection (1)(a), an authorised officer must briefly explain the reason why it is necessary to detain the person.
(3)If in the particular circumstances in which the power to detain the person is to be exercised, it is not practicable to briefly explain the reason why it is necessary to detain the person before the power is exercised, the authorised officer must do so as soon as is practicable.
(4)Before exercising any emergency powers under this section, an authorised officer must, unless it is not practicable to do so, warn the person that a refusal or failure to comply without a reasonable excuse, is an offence.
(5)An authorised officer must facilitate any reasonable request for communication made by a person subject to detention under subsection (1)(a).
(6)An authorised officer must at least once every 24 hours during the period that a person is subject to detention under subsection (1)(a) review whether the continued detention of the person is reasonably necessary to eliminate or reduce a serious risk to public health.
(7)An authorised officer must as soon as is reasonably practicable give written notice to the Chief Health Officer—
(a)that a person has been made subject to detention under subsection (1)(a);
(b)that following a review under subsection (6) a person is to continue to be subject to detention under subsection (1)(a).

(8) A notice under subsection (7) must include—
(a) the name of the person being detained; and
(b)a brief statement as to the reason why the person is being, or continues to be, subject to detention under subsection (1)(a).

(9)The Chief Health Officer must as soon as is reasonably practicable advise the Minister of any notice received under subsection (7).
(10)Despite subsection (7), if the authorised officer is the Chief Health Officer, the Chief Health Officer must, as soon as is reasonably practicable—
(a)advise the Minister in writing that a person has been made subject to detention under subsection (1)(a) or that following a review under subsection (6) a person is to continue to be subject to detention under subsection (1)(a); and
(b)include in the advice the name of the person being detained and a brief statement as to the reason why the person is being, or continues to be, subject to detention under subsection (1)(a).

Background to make of the Curfew Direction

On 15 March 2020, Adjunct Clinical Professor Brett Sutton (Sutton), the Chief Health Officer (CHO) advised the Health Minister that COVID-19 posed a serious, and potentially catastrophic, threat to public health. The Minister for Health declared a state of emergency on 16 March 2020 under s 198 of the PHW Act.[10]
[10]Victoria, Victoria Government Gazette (Special), No S 129, 16 March 2020.

Section 198(1) of the PHW Act provides:

Declaration of a state of emergency
The Minister may, on the advice of the Chief Health Officer and after consultation with the Minister and the Emergency Management Commissioner under the Emergency Management Act 2013, declare a state of emergency arising out of any circumstances causing a serious risk to public health.

The state of emergency remains in force and, most recently, was extended to 8 November.[11] The declaration of emergency and subsequent authorisations have empowered some authorised officers to give directions under s 200 of the PHW Act directed at reducing or eliminating the risk to public health posed by COVID-19.
[11]Ibid No S 515, 12 October 2020.

In July 2020, a significant increase in reported cases of COVID-19 occurred in Victoria, reaching a peak of 6,797 active cases on 7 August 2020. Stage 4 restrictions in public health directions were made in order to reduce the spread of COVID-19. This culminated in the issuing of the Stay at Home Directions (Restricted Areas) (No 8) under s 200(1)(b) and (d) of the PHW Act on 5 August 2020, which included a curfew between 8:00 pm and 5:00 am.

On 2 August 2020, the Premier declared a state of disaster under the Emergency Management Act 1986. That state of disaster remains in force and most recently was extended to 8 November 2020.[12]
[12]Ibid No S 461, 13 September 2020, No S 512, 11 October 2020.

The state of disaster declaration stated:

Emergency Management Act 1986
PREMIER’S DECLARATION OF A STATE OF DISASTER
(Section 23(1))
I, Daniel Andrews, Premier, after considering the advice of the Minister for Police and Emergency Services, being the Minister responsible for the giving of advice under section 23 of the Emergency Management Act 1986 (the Act), and the advice of the Emergency Management Commissioner, am satisfied that the emergency known as the coronavirus (COVID-19) pandemic constitutes or is likely to constitute a significant and widespread danger to life or property in Victoria.
Accordingly, I declare under section 23(1) of the Act that a state of disaster exists in relation to the whole of Victoria.
This declaration remains in force from 6.00 pm on 2 August 2020 until 6.00 pm on 2 September 2020, unless revoked earlier.
Dated 2 August 2020
Time 1.43 pm[13]

[13]Ibid No S 383, 2 August 2020 1.

After I had reserved judgment, the parties informed me by email that on 2 August, 2 September and 13 September 2020, the Minister for Police and Emergency Services made orders under s 24 of the Emergency Management Act 1986 suspending the operation of s 200(2)-(9) of the PHW Act and that that Ministerial direction was in force from the time the Stay at Home Directions were made until the time they were revoked. On 13 August, 2 September and 13 September 2020, the Minister for Police and Emergency Services pursuant to powers under s 24(2)(a) of the Emergency Management Act, directed authorised officers exercising powers under s 200(1)(a)–(d) of the PHW Act to warn persons before exercising powers that a refusal or failure to comply with a direction without reasonable excuse is an offence. These matters were identified in reports tabled in Parliament. These three reports were Report to Parliament on declaration of State of Disaster — Coronavirus (COVID-19) pandemic under s 23(7) of the Emergency Management Act 1986 on 3 September, 17 September and 15 October.

The relevant provisions of ss 23 and 24 of the Emergency Management Act 1986 state:

23 Power of Premier to declare state of disaster
(1)If there is an emergency which the Premier of Victoria after considering the advice of the Minister and the Emergency Management Commissioner is satisfied constitutes or is likely to constitute a significant and widespread danger to life or property in Victoria, the Premier may declare a state of disaster to exist in the whole or in any part or parts of Victoria.
(1A) The Premier must not make a declaration under this section for the purpose of taking action against any person or body of persons in the circumstances to which section 4(1) of the Essential Services Act 1958 applies.
(2)The Premier may at any time revoke or vary a declaration under this section.
(3)Immediately upon the making, revocation or variation of a declaration under this section, a state of disaster exists, ceases to exist or exists as so varied (as the case requires) for the purposes of this Part.
(4)As soon as practicable after the making, revocation or variation of a declaration under this section the Premier must cause notice of the making, revocation or variation of the declaration to be broadcast from a broadcasting station in Victoria and to be published (with, in the case of the making or variation of a declaration, a copy of the declaration) in the Government Gazette.
(5)Production of a Government Gazette purporting to contain—
(a)notice of the making, revocation or variation of a declaration under this section is evidence of that making, revocation or variation (as the case requires); and
(b)a copy of the declaration under this section is evidence of the terms of the declaration.

(6)A declaration under this section remains in force for not more than one month, but another declaration may be made before, at or after the end of that period.
(7)If a state of disaster has been declared under this section the Premier must report on the state of disaster and the powers exercised under section 24 to both Houses of Parliament as soon as practicable after the declaration if Parliament is then sitting and if Parliament is not then sitting as soon as practicable after the next meeting of Parliament.

24 Powers and duties of Minister
(1)In a state of disaster, the Minister is responsible for directing and co-ordinating the activities of all government agencies, and the allocation of all available resources of the Government, which the Minister considers necessary or desirable for responding to the disaster.
(2)In addition to and without in any way limiting the generality of subsection (1), in a state of disaster the Minister may—
(a)direct any government agency to do or refrain from doing any act, or to exercise or perform or refrain from exercising or performing any function, power, duty or responsibility; and
(b)if it appears to the Minister that compliance by a government agency with an Act or subordinate instrument, which prescribes the functions powers duties and responsibilities of that agency, would inhibit response to or recovery from the disaster, declare that the operation of the whole or any part of that Act or subordinate instrument is suspended; and
(c)take possession and make use of any person’s property as the Minister considers necessary or desirable for responding to the disaster; and
(d)control and restrict entry into, movement within and departure from the disaster area or any part of it; and
(e)compel the evacuation of any or all persons from the disaster area or any part of it.

(3)If a direction is given to a government agency under subsection (2)(a)—
(a)the government agency must comply with the direction; and
(b)the direction prevails over anything to the contrary in any Act or law.

…

Associate Professor Giles joined the Department of Health and Human Services on 3 August 2020 as a Senior Medical Adviser and has mostly worked in the Case, Contact and Outbreak Management Team (CCOM) as an Outbreak manager, reporting to a Deputy Public Health Commander. She was a member of the Public Health Unit.

The CCOM team is responsible for the management of all COVID-19 cases, contacts and outbreaks, for example at hospitals. Giles made recommendations about outbreak management, including self-isolation, quarantining and identifying contacts with infected people. To perform her role, Giles was required to understand, summarise and carefully consider detailed daily data about COVID-19 cases, contacts and outbreaks. This data was then used to inform the Government’s response to the pandemic. She saw a clear and direct correlation between the Stage 4 restrictions and a reduction in the number of reported COVID-19 cases.

Giles is an infectious disease physician and holds appointments to practise at four Melbourne hospitals and has a private practice in infectious diseases. She is an Adjunct Professor in the Obstetrics and Gynaecology Department at Monash University. She is not an epidemiologist, but has extensive practical experience in public health and infectious diseases. She is a member of the Australian Technical Advisory Group on Immunisation COVID-19 Vaccine Working Group and Deputy Chair of the Cochrane National COVID-19 Clinical Evidence Taskforce–Pregnancy and Perinatal Care Panel and a member of the Cochrane National COVID-19 Clinical Evidence Taskforce – Disease Modifying Treatment and Chemoprophylaxis Panel. This Taskforce meets every week to review the available scientific evidence specific to the management of people with COVID-19 infections, and make evidence-based, publicly available recommendations, written to inform the clinical management of patients. She has written over 100 peer reviewed journal articles and book chapters and several conference presentations.

Twice during her employment at the Department, Giles has been appointed as a Deputy Public Health Commander. She held that position on 13 September 2020, when she signed the Directions. The duties of that position or its position in the Department’s organizational structure were not explained.

Mr Andrews’ statements about the Curfew

At a media conference on Sunday, 6 September, Mr Andrews released a document titled ‘Victoria’s roadmap for re-opening — How we live in Metropolitan Melbourne’ (the Roadmap). The document described a number of steps out of the Stage 4 restrictions. The First Step, commencing on 13 September, included the Curfew being ‘eased to 9pm-5am’. Mr Andrews stated while releasing the Roadmap:

Currently, Melbourne is in Stage 4 restrictions. From 11:59 pm on 13 September, we’ll take our First Step towards COVID Normal.
…
Finally, recognising we’re slowly getting to warmer weather, [the] curfew will also move back an hour to 9:00 pm.

The plaintiff’s solicitor made an affidavit setting out what he said were statements made by Mr Andrews at a media conference on 8 September. He viewed the conference live and had access to a copy of the video stored on a television news channel via YouTube. His record of the conference was as follows. The Premier was asked by one of the journalists present at the conference ‘are you able to confirm today that it was in fact the police that asked you to impose the curfew?’ to which he replied:

No, I would not confirm that at all. I think there was a discussion, there was a discussion between different parts of government. We spoke with the Police, absolutely, Police I think.

When asked ‘where did the idea first come from’, Mr Andrews replied:

[O]h look, I am not wanting to be anything other than clear, but I can’t pinpoint the individual and the day when they said ‘oh, let’s do this’. I think there has been an ongoing discussion, right, just to be as clear as I can be: there has been an ongoing discussion. Every time we make rules the Police will give us feedback on how hard or easy they will be to properly enforce and you would expect nothing less; you would expect that we have that ongoing discussion. Once you limit, once you limit the number of purposes, the number of reasons that you are allowed to leave home, to a very small number, then the easiest thing to do to enforce that, not easy at a personal level, or you know I have never done it before, but the easiest thing just if be completely focused on the kind of operational side of it, the easiest thing to do is to say ’ok, oh well, if you do not have one of those reasons, you are not allowed out’, so at the moment if you wanted to go exercising you can’t, if you wanted to go shopping you can’t, if you go to go to work you can, if you are permitted worker you can do that. So this is about limiting movement, health advice says limit movement, the Police say they need clear rules, to be able to enforce, curfew delivers both.

When asked: ‘do you not think Victorians deserve to know where that idea originated from and what the process was ...’ the Premier replied:

[W]hat I am saying to you is that I can’t give you the specific person and the exact moment that they said let’s do this.

The Premier was then asked ‘you do not know or you won’t tell us?’, to which the Premier replied:

No, no it’s because I can’t tell you, I don’t know exactly which person at what moment said that but there is ongoing discussions, lots of different people talking both us as a government, officers, senior officials, members of the Victoria Police and it’s no more or less complicated than that.

When asked whether Brett Sutton advised him that he ‘should do it’, ie introduce a curfew, the Premier replied:

It’s not a matter for Brett Sutton, this is not, it’s not health advice, this is about achieving the health outcome, his advice is do whatever you can to limit movement. Police then say ‘We need rules we can enforce, it needs to be as simple as possible, we can’t stop every car, but if everyone is out who shouldn’t be, knows that there is a chance they will get caught, and they got no lawful reason to be outside, that’s what a curfew is about, then all of a sudden you will limit movement’. So it’s consistent with the health advice, and these are decisions ultimately made by me, so the answer to the question is, if anyone has got a problem with that, anyone who doesn’t [think] that has limited movement and driven down cases, well then their argument is with me, because, I’ve made that decision because I think it’s a challenging one to make but its effective and it works and what it means is ...if you wanted to go exercising at midnight you can’t, if you wanted to go shopping at midnight you can’t, if you are a worker and you are permitted you can, if you need urgent care, you can get that care, beyond that what it means is no one is sneaking out going to their mates’ place, no one is going doing things that they are by law not allowed to do, so it hasn’t changed the rules— the rules, that is the reasons you can leave, they are all the same — it just makes the job of Police much much easier.

Media Conference 10 September 2020

At a media conference on 10 September, Mr Andrews was asked, ‘yesterday, you said that the curfew made it easier for Police to enforce, today the Police Commissioner said that they weren’t consulted’. Mr Andrews replied:

Well, the Police Commissioner and Police Command have — throughout all of our decisions have been really clear with us that they need rules that are as easily enforced as possible and the curfew, together with the 5 km rules, together with — there is a very long list of different decisions that we’ve made over these last few months and indeed since the beginning of the pandemic — that’s always been clear to us that we need to make the job of Police, the amazing work that they do, as simple as possible.

On the same day, in answer to a question about the Curfew, he said:

Well, decisions are made by group of people, and I can’t necessarily pinpoint for you the exact individual and the exact moment that it was suggested that we put a curfew on. What I am saying to you is anyone who is displeased with that or doesn’t think that that’s a proportionate measure, well that’s a decision that I’ve made.

Associate Professor Giles appointed to consider Directions

The Directions in force were to expire on Sunday 13 September and on the previous Wednesday, Giles was asked if she would fill in for Dr F Romanes, who had made the August directions and was going on leave. She agreed to do so. Dr Romanes emphasised that she would have to carefully read documents and consider the Charter. He gave her a list of people in the Department to contact if she had queries or required assistance. The evidence did not disclose why Giles, who had worked for the Department for just a month and had not been involved with the making of previous directions, was appointed.

To make the Directions, Giles needed to be an authorised officer and she was so appointed by an instrument of appointment made 11 September 2020 by Sutton. Under the headings ‘Public Health and Wellbeing Act 2008’ and ‘Instrument of Appointment’, the document reads:

I, Adjunct Clinical Professor Brett Sutton, Chief Health Officer, Delegate of the Secretary to the Department of Health & Human Services, appoint: Michelle Giles, as an authorised officer under section 30 of the Public Health and Wellbeing Act 2008.

By an ‘Instrument of authorisation under s 199’ executed on the same day, Sutton authorised Giles to exercise the public health risk and emergency powers of the PHW Act. The instrument reads:

This authorisation is given under s 199 of the Act to authorise specified authorised officers to exercise public health risk powers and emergency powers for the purpose of eliminating or reducing the serious risk to public health during the state of emergency as extended.

It goes on to state:

I, Adjunct Clinical Professor Brett Sutton, Chief Health Officer of Department of Health and Human Services, authorise the officer in column 2 of the Schedule, being an authorised officer appointed by the Secretary of the Department of Health and Human Services (or her delegate) under s 30 of the Act, to exercise any of the public health risk powers and emergency powers.[14]
[14]Emphasis altered.

The schedule then reads:[15]
[15]Emphasis added.

Source of power:         Public Health and Wellbeing Act 2008
Holder of                Chief Health Officer
Power/function:
Authority type:           Authorisation
Public Health risk powers and emergency powers

COLUMN 1    COLUMN 2  COLUMN 3
Statutory   Authorised officers   Limitations/
Provision  restrictions

Section 199     The following authorized officers that have been
of the Actappointed by the Secretary (or her duly appointed
                delegate):

· Michelle Giles, Authorised Officer N/A

Another Instrument of Authorisation was executed on 13 September at 2:06 pm which appointed Giles, along with another 381 of her colleagues as Authorised Officers.

Under s 30 of the PHW Act, the Secretary or her delegate, in this case the Chief Health Officer, must be satisfied that the person to be appointed is suitably qualified or trained to be an authorised officer.

The Sunday 13 September media conference

At a media conference on Sunday morning, 13 September, Mr Andrews, accompanied by Chief Health Officer Sutton and two Ministers, announced that from 11.59 pm Sunday night:

Melbourne moves from Stage 4 restrictions to the first step of our roadmap. Which brings small — I fully acknowledge — small changes that allow for more social interaction and more time outside. Social bubbles for those living alone or single parents, they will be allowed to have one other person in their home.
Exercise is extended for two hours, split over a maximum of two sessions. That goes obviously from one hour to two hours. And the notion of time outside, time outdoors, whilst at the moment it’s just for exercise, it will also now be — from midnight tonight — for social interaction with one other person or members of your household. And of course, as we move towards the warmer months, the curfew is extended from 8 pm — from tomorrow night essentially, from midnight tonight so it’ll apply from Monday night — from 8 pm to 9 pm. So an extra hour of that freedom of movement.
Playground and outdoor fitness equipment will reopen, and libraries will be able to open for contactless click and collect. We’ll put all this detail up on the website but, and we’d be grateful to you helping us to get the message out there.[16]

[16]Premier Mr Daniel Andrews, ‘Transcript of Press Conference’ (Media Conference, transcribed by Legal Transcripts Pty Ltd, 13 September 2020) 5.

On the same day, a Media Release was published online at entitled ‘On the Road to Covid Normal’, which stated that as from 11:59 pm ‘the curfew will begin at 9pm as Melbourne moves into warmer months’.

Associate Professor Giles decides whether to make the Curfew Direction

But Giles was still to decide whether the new Directions should be made and whether they should include a curfew. She commenced considering those questions from the time that she was asked to fill in for Dr Romanes.

At about 11:00 pm on that same Sunday, Giles, at the Department’s CBD office in Lonsdale Street, signed the Stay at Home Directions (Restricted Areas) (No 15) and the other Directions. They contained the Curfew prohibiting persons leaving their homes between 9:00 pm and 5:00 am save for certain specified reasons including: for work, to obtain necessary medical goods and services, for certain child-care responsibilities, to provide care and support for a relative or other person, to escape harm or a risk of harm and for emergency purposes.[17]
[17]Stay at Home Directions (Restricted Areas) (No 15) cl 5(1AF).

The Stay at Home Directions (Restricted Areas) (No 15) contained the introductory paragraphs:

I, Associate Professor Michelle Giles, Deputy Health Commander, consider it necessary to eliminate or reduce the risk to public health – and reasonably necessary to protect public health – to give the following directions pursuant to s 200(1)(b) and (d) of the Public Health and Wellbeing Act 2008 (Vic) (PHW Act):
PART 1 – PRELIMINARY
1 Preamble
(1)The purpose of these Directions is to address the serious public health risk posed to Victoria by Novel Coronavirus 2019 (2019nCoV).
(2)These directions require everyone who ordinarily resides in the Restricted Area to limit their interactions with others by:
(a)restricting the circumstances in which they may leave the premises where they ordinarily reside and the Restricted Area; and
(b)placing restrictions on gatherings, including prohibiting private gatherings (No visitors to another person’s home other than in very limited circumstances).

(3)These directions must be read together with the Directions currently in force.
(4)These directions replace the Stay at Home Directions (Restricted Areas) (No 14) and amend the start of the evening curfew, increase the time permitted for exercise and social interaction, and establish a social bubble system of nominee persons and nominated persons.

Part 2 is headed ‘Stay at Home’. Clause 5(1) contains the requirement to ‘stay at home’, other than for one of the reasons specified in pt 3 (Reasons to leave premises).

The Stay at Home Directions were one of a suite of eleven Directions that Giles signed on Sunday evening 13 September. She signed ten other Directions the: Stay at Home Directions (Non-Melbourne); Area Directions (No 8); Restricted Activity Directions (Restricted Areas) (No 9); Restricted Activity Directions (Non-Melbourne) (No 4); Workplace Directions (No 4); Workplace (Additional Industry Obligations) Directions (No 5); Permitted Worker Permit Scheme and Access to Onsite Childcare/Kindergarten Permit Scheme Directions (No 5); Care Facilities Directions (No 11); Diagnosed Persons and Close Contacts Directions (No 11); and Hospital Visitor Directions (No 11).

The plaintiff commences the proceeding and the Curfew is revoked

The following day, the plaintiff commenced this proceeding seeking judicial review orders. This proceeding was given a priority hearing and was listed for a two days commencing on Monday, 28 September 2020.

However, at another media conference on Sunday, 27 September, Mr Andrews announced that the Curfew would be lifted from 5:00 am on Monday, 28 September. At that same press conference, Sutton said that:

We’re at a point now where the epidemiology is different, where the demographics of the cases that we are seeing are different … Over the course of the last couple of weeks, we’ve talked about 21 mystery cases but really we are getting to one, two, three community cases per day and so in reflecting on the obligations of the Victorian Charter and the Public Health and Wellbeing Act and the issue of proportionality, it’s my view and the public health team’s view that the curfew is not a proportionate measure to have in place going forward.

Associate Professor Giles’ evidence about how she made the Directions

Giles understood that the Directions were required to be signed by the end of 13 September, when the previous Directions would expire. She understood that the power to decide whether to sign the Directions was entrusted to her alone. She commenced turning her mind to the making of the Directions on 9 September following her appointment as a Deputy Public Health Commander and confirmed ‘most of [her] waking hours’ on 12 and 13 September were spent considering information relevant to the making of the Directions and weighing up competing considerations after receiving the documents about the previous directions.

Giles said that she had not previously been involved in drafting directions because, prior to filling in for Dr Romanes, she worked in the Case Contact and Outbreak Team.

She said that the process of making directions usually involved discussions within the Department’s Public Health Unit, although a decision-maker ultimately makes them after reviewing the information provided. The Public Health Unit made recommendations about restrictions to control the pandemic. Those recommendations were endorsed by the Chief Health Officer and passed onto key stakeholders, such as the Crisis Council of Cabinet, the Premier’s Officer and the Minister’s Office. Thus, the Premier’s Office was likely to be aware of the proposed Directions that Giles reviewed and considered on the Sunday evening. She said that she was unsure of the process for choosing the authorised officer who was to sign particular directions.

Giles said of the Roadmap document:

I don’t think the decision is the Premier’s. This [is] informed by the public health unit. And this is announced — so the plan is correct. The plan is being announce[d] prior to the signing of directions.
…
The roadmap is a plan. And it contains in it the proposed changes that, as I understand it, have been informed by the public health unit.

The following passage in cross-examination is also instructive:

Mr Clarke: That’s just the Premier makes these decisions, doesn’t he and gives documents or causes documents to be provided to whoever’s appointed?—
Associate Professor Giles: No, I don’t agree with that. The Public Health Unit absolutely makes the decisions about what the restrictions are required to control the pandemic. Those recommendations are then endorsed by the Chief Health Officer and then those are shared with key stakeholders but that, the decision is actually, and the recommendations actually come from the Public Health Unit.

However, on this occasion, it appears that the normal process of considering directions did not involve Giles and she was involved at a point when the proposed directions had already been drafted. She did not prepare the Directions, but was presented with pre-prepared documents to consider and decide whether to accept and sign.

Giles received and considered the following documents and advices: a bundle of documents relating to the directions then in force, which Dr Romanes had made on 16 August; a bundle of documents comprising a draft covering brief and draft directions for making on 13 September; the covering brief from the Department titled ‘re-issue of amended public health directions to limit the spread of Novel Coronavirus 2019’; a copy of an instrument of authorisation from the Chief Health Officer, 11 draft public health directions, ten individual assessments by the Legal Services Branch that the Directions were likely to be compatible with the Charter and a policy paper prepared by the Department and information provided by the Chief Health Officer during two separate discussions, at Giles’ request, about the proposed directions. She also received: legal advice by members of the Department’s legal team about the requirements of the Charter; public health advice from an Executive Director, Strategy & Policy; and, information gained in teleconferences with a Deputy Public Health Commander. She also relied on the specific data and experience gathered in her Department role and her knowledge and experience gained throughout her career in infectious diseases and public health.

That daily data was first an ‘Outbreak Summaries Report’ of 20 to 40 pages, which recorded and reported details on COVID-19 outbreaks in real time. She also received a ‘COVID-19 Intelligence Briefing’ which was an email of ten pages, prepared by the Public Health Intelligence team within the Department, including epidemiologists, who interpret and analyse data about COVID-19, including statistics on new cases, the source of cases, the number of outbreaks, and the demographic details of outbreaks. She said that she received over 1000 pages of information between 3 August and 13 September, but she did not read all the emails every day. She was familiar with the epidemiology of COVID-19 in Victoria as a result of her work interpreting the data for the Department and she understood its implications, including the factors contributing to transmission of COVID-19. She said that the most important matter when she made the Directions was the current epidemiology.

She spoke with Sutton, who had been at the media conference that morning, in two telephone conversations on 13 September: the first in the afternoon and the second in the evening when she was reviewing the Directions. She took into account his view on the public health rationale of the Curfew. She also received legal advice from the Department’s legal team in a telephone call. Additionally, she received public health information from the Executive Director of Strategy and Policy, Ms Nicole Lynch, at the Department in emails.

The email chain between Lynch, Sutton and Giles

Associate Professor Giles was asked about her email chain with Ms Lynch, who was ‘on secondment from the Department of Premier and Cabinet to assist with the Victorian COVID-19 response’. Ms Lynch sent the following email to Sutton, Mr Allen Cheng and Giles on Sunday, 13 September at 1:10 pm, after the Premier’s media conference:

Hi everyone
As discussed, documenting the public health basis for the curfew for the final legal review for today’s directions.
Please let me know if any further comments on this framing. Many thanks
Nicole
Public health rationale:
•The curfew is part of a range of restrictions that go to limiting movement in Metropolitan Melbourne to contribute to reducing the spread of COVID-19. While the curfew on its own may not achieve this aim, it is part of a package of restrictions that achieves this and to remove may have unintended impacts on transmission from both a direction impact and behaviour change mechanism.
•Having people at home for 8 or 9 hours out of 24 (9pm-5am) has the potential to reduce the aggregate risk of people from different households mixing. No single measure will be effective by itself, as interventions work in combination to reduce risk of transmission.
•Stage 4 restrictions are in place with significant volumes of community transmission, as well as substantial numbers of cases with an unknown source. In this environment, the overall aggregate purpose of the Directions taken together are to minimise movement and reduce aggregate risk of people from different households mixing.
•A curfew reduces mobility (particularly targeted at the age bracket of 20-39) — potentially reducing the geographic spread, distance travelled (eg people attending private residences at night).
•It supports further community understanding of the need for behaviour change, specifically that you should not leave home unless for the 4 reasons and also reduces the reasons people would not be at home during these hours.
•It also enhanced operational enforcement and compliance operations to maximise compliance with directions which increases the overall reduction of transmission risk as intended by the package of public health interventions included in the Directions.
Epidemiology
•99 cases with an unknown source in the previous 14 days – indicating substantial transmission is still occurring in Metropolitan Melbourne outside the controls of the test, trace and isolate regime.
•The effective reproduction rate is currently at 0.77. Maintaining this level (rather than see it increase to close to 1) is critical to reduce case load and transmission fast enough to ensure that significant restrictions are not required for a longer duration and that rights and freedoms can be restored as soon as possible.

Giles replied at 1:50 pm stating:

Thanks Nicole.
One final additional comment — there has been much discussion about the paucity of evidence to support the curfew as a public health intervention. However, we do know from our recent experience that a significant fall in case numbers can be achieved when a curfew is included as part of a package of restrictions. Given we still have evidence of community transmission I propose that by completely removing one component we may expose the community to an unmeasured risk and the potential for an increase in cases.

Sutton replied at 1:54 pm stating:

Thanks Nicole,
I’ve discussed with Michelle and we also reflected on the more limited engagement of Charter issues given the existing SAH Directions and the fact that the curfew primarily targets non-permitted travel from home.

Giles did not agree with suggestions put in cross-examination that Lynch’s emails directed her attention to compliance issues and behavioural claims, rather than health advice, and that Giles had adopted these comments. She said that she did not adopt Lynch’s comments, but that, in any event, Lynch outlined the public health rationale for the Curfew under the six dot points in her email. Giles said that law enforcement was not the reason she signed off on the curfew.

Giles received the draft directions via email after 3:00 pm. She printed the final form of the Directions and Charter assessments and systematically went through every document and decided whether to sign them or not. She had to tick an ‘agreed’ or ‘not agreed’ box for each of them on an accompanying form. She commenced signing the Directions in the Department’s office at 5:30 pm and finished just after 11:00 pm.

Associate Professor Giles said that her professional experience made her realise the difficulty in ‘weighing the impacts of a public health measure on specific individuals, businesses and communities against the impacts on the broader community of individuals if the measure is not taken’. Her experience at the Department taught her about the weighing exercise in the context of COVID-19 outbreaks in Victoria during the ‘second wave’.

Associate Professor Giles said that she did not instruct anyone that she was going to sign the Directions prior to doing so on the Sunday night. Thus, she gave evidence that the words ‘[y]ou have instructed us’ in paras [45] and [46] of the briefing attachment were incorrect. She suggested that this wording related to the earlier briefing pages which she had to go through and the need to tick the box indicating whether she agreed or disagreed to sign the Directions and if she agreed, she was to sign them. She signed them after considering them with the Charter assessments, but had not decided to do so before receiving the Directions.

The amendments to the Directions

The plaintiff’s counsel referred to emails between Giles and Department staff on the Sunday evening about the need to re-sign the Stay at Home Directions because of drafting issues raised by the Premier’s office and suggested that they showed that she was acting at the direction of the Premier. These drafting issues did not concern the Curfew, but included a misalignment between clauses dealing with exercise and private gatherings and making restrictions compatible with safe campaigning in the upcoming local government elections. To understand this issue, it is necessary to set out some of the email chain.

The email chain in relevant parts states:

Colleague A:             The Premier’s office has picked up an issue with the Stay at Home Directions x 2. We’re just fixing it up now and will send through shortly for re-signing. I’m also looking at your query on the Stay at Home Directions regional.
Assoc Prof Giles:        I have finished all the others except the Stay at Home Regional (I will wait for the revised version). I will then re-sign the Stay at Home Metro. Can you advise what the issue was?
Colleague A:             In relation to the Stay at Home Directions (Restricted Areas) — I understand there’s a misalignment between the clauses dealing with exercise and private gatherings. In relation to the Stay at Home Directions (Non-Melbourne) — the issue is around high numbers of people (5) being able to catch up for social interactions that can catch up for exercise and possibly aligning the two limits to be the same.
Assoc Prof Giles:        It would be important for me to know if there are likely to be any further corrections/changes as I am in 50 Lonsdale St so will wait here till I receive the updated versions. After I leave though it won’t be easy for me to come back in and re-do any others.

At this point, the email chain splits into two, the first reply reads:

Colleague A: As I understand there are no other changes expected, but I’ll double check;

and the second reply reads:

Colleague A: FYI, attached are mark ups of the proposed changes that are just being checked with the premier’s office. Will send through confirmation/execution versions once premier’s office has confirmed.

Giles’ colleague then sent a further email with the execution versions of the Stay at Home Directions (Restricted Areas) (No 15) attached:

Colleague A:             The two Stay at Home Directions attached are now ready for signing. I note that the only other outstanding item for signing is the cover brief. Could you please scan these back once ready. Thank you so much for your patience and assistance today.
Colleague B:              Michelle — apologies — but we’ve just been asked to HOLD for now. Will confirm shortly.
Colleague B:              Sorry for the delay. Please see attached final PDF’s for your signing. A minor change has been made to Clause 10G (ii) to allow the employee or volunteer to travel within the local government ward in which they ordinarily reside or within 5 Kilometres from their ordinary place of residence. Please send these and the covering brief when ready. Thank you again for your patience.

Associate Professor Giles disagreed that she would always have signed the amendments to the Directions that the Premier’s office requested and said that she wanted to know what the issue was before signing it. She also denied being part of the email conversations directly with the Premier’s Office. She denied that she was presented with the Directions in their completed form, as a fait accompli, and that she had no option but to make the Directions. She said that she considered the Curfew in relation to public health and the reduction of the movement of people.

At 11:24 pm on 13 September 2020, Giles signed and emailed to the Department copies of the Stay at Home Directions (Restricted Areas) (No 15) and the Stay at Home Directions (Non-Melbourne) (No 5).

Giles’ knowledge of the Premier’s statements

Although Sutton had been present at the Premier’s media conference on the Sunday morning and took part in the email chain in the early afternoon and spoke to Giles about the utility of the Curfew, she said that the Premier’s announcement was not mentioned. She said that she did not hear the Premier’s announcement on Sunday morning 13 September and that she did not know if he announced the Directions at the media conference, but she was aware that the proposed Directions and Roadmap were part of the response. She also said she would have assumed that the Premier had announced his plan at the press conference on the Sunday morning. She described the process of making Directions as including an announcement about what the Directions were going to contain or what was likely to be adopted. She agreed that even though she did not see any announcement by the Premier, it would have been reasonable to have expected an announcement would happen.

Despite the Roadmap document stating that ‘[a]t 11:59 pm 13 September 2020 Metropolitan Melbourne will commence the first step of easing and Regional Victoria will commence the second step’, she again denied that it was a ‘foregone conclusion’ that she would sign the Directions. She knew of the existence of the Roadmap and referred to statements by the Premier with which she disagreed, stating that signing or making the directions was her decision on the Sunday. She said that the Premier’s statements would have been informed by information about recommended directions from the Department’s Public Health Unit.

The briefing material included reference to law enforcement purposes for maintaining the Curfew. Nonetheless, Giles said that this was not part of her consideration, nor was she influenced by comments made by the Premier in the media. She said that the decision was hers alone; her primary consideration was whether the Curfew was justified from a public health perspective, and she decided that it was.

She said that she had been told that if she had not signed the Directions, the matter ‘would be escalated to the Secretary and discussed with Strategy and Policy’. She did not know what then ‘would have happened, whether they might’ve got someone else to sign it’. But she said that it was always an option, that she did not have to sign the Direction if she did not agree ‘from a public health perspective, with what was contained in the directions’.

She was asked in cross-examination how she could explain the fact she signed some Directions at 8:30 pm and some not till 11:00 pm when the Premier made a public announcement about the Curfew that morning before 11:30 am. She said that the Public Health Unit in the days and weeks leading up to the making of Directions would look at all the important data and make recommendations, which were ‘pulled together’ and endorsed by the Chief Health Officer. A summary of them was then shared with the key stake holders: including the Crisis Council of Cabinet; the Premier’s Office and the Minister’s office. They would have been aware of the recommendations before an independent decision-maker, such as Giles, considered and reviewed them. Thus on 13 September, the stakeholders would have been aware of the recommendations before she reviewed them on the Sunday evening.

She said that she assumed that the Premier had announced the Directions on the Sunday morning, 13 September as this had happened with previous directions. The significance of this assumption appears from the following passage in her cross-examination:

Mr Clarke:And you were conscious of this roadmap, were you not, when you signed the directions on 13 September, were you not?
Assoc Prof Giles: Yes. The roadmap is a plan. And it contains in it the proposed changes that, as I understand it, have been informed by the public health unit.
…

Mr Clarke:You accept, do you not, that the directive you signed accorded with what is set out, a document called the road map, released to the public on 9 September, that is the curfew will be eased to 9 pm to 5 pm?
Assoc Prof Giles: Yes, the directions that I signed on the Sunday did have easing of the curfew to 9 pm, correct.
Mr Clarke:And it wasn’t your decision to ease the curfew from 8 pm to 9, 5 am, was it?
Assoc Prof Giles: So it was my decision on the Sunday night before I signed the direction. The work and proposal was not mine leading up to the 13th but on the 13th it was my decision whether to sign that direction or not.
…

Mr Clarke:And, what, it was a coincidence that it accorded with the road map that the premier announced on the 9th?
Assoc Prof Giles: No, I don’t, I don’t think it’s a coincidence. The road map, as I’ve said, was informed by public health advice so I don’t think it’s coincidental when I was considering the public health rationale for those directions that there would be some alliance with that. The public health advice, the priority is to protect Victorians and reduce the risk of COVID. So I’m not surprised there’s some alliance with that.

Associate Professor Giles’ reasons for signing the Curfew Direction

Associate Professor Giles accepted that there was no evidence that the Curfew, as a discrete action aimed at stopping the spread of COVID-19, had any greater impact than other restrictions. But she said that the Curfew would reduce the movement and mobility of people and was part of the package or suite of restrictions that were aimed at reducing movement and interactions between people. She said that the 2019 Novel Coronavirus is very infectious and spread by close contact of, and interaction between, people. As case numbers increased, despite restrictions being in place, three things were really important to control the pandemic: adequate testing, contact tracing and reduction in movement and interaction of people.

She agreed that she was not provided with scientific evidence in relation to the Curfew, as it was not considered in isolation from the package of directions. She was asked about reference material, being research and scientific papers, listed at the end of Attachment D, which was a document provided to her titled ‘COVID Additional Direction’. She had read two in particular, namely, by Chang SL (number 28) and by Ferguson NM (number 27). Neither of these references discussed the effectiveness of the Curfew or the 5 km radius.

While she did not receive expert evidence or data about the impact that the Directions were having on anxiety, depression and loneliness in the community, she was aware of their psychological impact on people.

Giles was asked about the ‘Transmission Dynamics’ details in Attachment D of the briefing papers sent to her and whether she considered that the impact of making Directions for the whole of the Melbourne Metropolitan Area was arbitrary, as the outbreaks could be localised. She considered that the recent outbreaks referred to in the document under that heading were merely a ‘snapshot’ of the cases and did not reflect all the cases in Melbourne. She also said that the attempts in June and July to lockdown hotspots were ineffective in reducing transmission. She did not consider that localising the Curfew would be effective, as there would still be significant movement of people.

The Directions were published in the Victorian Government Gazette on 14 September 2020.

Giles was asked about the Department’s Charter compatibility advices provided to her and the parts that had originally been redacted because of a legal privilege claim when exhibited to her first affidavit.[18] The redacted part of the advice included that:

It is the Department’s view that these Directions are, on balance, likely to be compatible with human rights under the Charter, in light of the exceptional circumstances in which they are being issued and the public health advice they are based on. However, we note that this assessment is not without doubt; in particular, there is some risk of incompatibility with respect to the evening curfew.[19]

[18]See Loeilo v Giles [2020] VSC 619 ruling that legal privilege could not be claimed in respect of the Charter advices.

[19]Emphasis added.

Giles denied that she redacted the last sentences and similar sentences because she did not want the Court to know that the advice given included a risk of incompatibility of the Curfew with the Charter. She denied that she had no hesitation in imposing the Curfew despite the risk of Charter incompatibility and said that she spent a lot of time thinking about the impact of the Curfew.

Giles said that her general experience in public health and infectious diseases taught her about the importance of weighing the impacts and benefits of public health measures. Before she signed the Directions, she had discussions with Chief Health Officer Sutton and the Department’s policy team and lawyers about the human rights considerations and competing public health factors. She affirmed that these discussions greatly assisted her in making the Directions, but she used them to inform her own thinking and that she knew the ultimate decision was hers to make.

On the matter of the Directions’ compliance with the Charter, she considered that her role was to determine whether the restrictions were proportional to the risk of COVID-19. She said that she took a precautionary, or careful and considered approach. She looked at what the Stage 4 restrictions had achieved and what would happen if they were eased too quickly. Ultimately, she was concerned that if she altered the Stage 4 restrictions, it would undo all of the progress made.

She said that she considered the four steps that the Charter advice said she was required to consider. They were: (1) understanding the rights of the person affected by a decision; (2) turning one’s mind to the impact on a person’s human rights; (3) identifying countervailing interests; and (4) balancing private and public interests.

Giles said that she gave particular consideration to the Curfew part of the Directions as it had been raised in the media and that highlighted the need to carefully weigh its impacts when making her decision.

The legal briefing she received mentioned the Premier’s comments that the Curfew made law enforcement easier, but she had already read those comments on The Age website. However, she had not seen the Premier make comments about the Curfew at a press conference, did not communicate with the Premier or the Premier’s Office about the Directions or the Curfew specifically, and had no recollection of the Department telling her anything about the Premier’s views on the Curfew.

The advice assumed that the limits imposed by the Directions were in fact empowered by s 200 and conformed to the PHW Act more generally. The advice referred to the current evidence on the spread of COVID-19 and that the current modelling indicated that throughout Victoria, in the absence of stringent control measures, the following six months would see over 10,000 people in Victoria die from COVID-19. It also stated that if the current rate of community transmission in greater Melbourne persisted without continued restrictions, there would not be enough contact tracing staff to cope with those demands and infections would spiral out of control. The advice made the following comments about the Curfew:

The evening curfew has been demonstrated to significantly reduce the movement of people in the Restricted Area. Traffic modelling has demonstrated a dramatic reduction in the number of people moving around the Restricted Area. In this way, the curfew significantly contributes to the reduction in the spread of 2019-nCoV. There are also limited exceptions to the evening curfew, such as for the provision of care and support, including child-minding; for health or medical purposes; to escape the risk of harm; and for emergency purposes, so that people can still leave their premises during curfew hours for legitimate reasons.
The Department notes that the evening curfew was first introduced on 2 August 2020 in directions signed by Dr Finn Romanes. Dr Romanes signed those directions on the basis of his view of the package of directions, and advice, that the curfew, as part of a package of measures, was reasonably necessary to protect public health; and on balance, that the limits on the relevant rights were reasonably justifiable on the basis of persuasive medical evidence, as well as current data and trends concerning the rates of infection and community transmission.
The Department has been provided with advice that the continuation of the evening curfew remains reasonably necessary on public health grounds. This is primarily because it reduces movement, which in turn reduces the risk of community transmission. Further, it is one part of a suite of measures that have proven to be highly effective in reducing community transmission. There is a risk that removing the curfew component from this suite may undermine the effectiveness of the measures taken together; this risk is considered to be unacceptably high.
The Department notes the comments by the Chief Health Officer, Professor Brett Sutton, in a media interview on 8 September 2020, where he said that while the curfew is not inconsistent with public health advice, it was not the subject of his advice prior to its implementation. Professor Sutton also stated in that interview that had he ‘put [his] mind to it’ that the evening curfew would ‘probably’ have been a measure he would have recommended.
The Department also notes that Premier Daniel Andrews stated in a press conference on 12 September 2020 that the evening curfew is ‘not a matter of public health advice. It’s a law enforcement issue’. He said ‘[i]t’s about giving police the easiest set of rules to enforce and not have to waste their precious time dealing with things that shouldn’t be happening and can easily be prevented by putting a curfew in’.
Despite these comments, it is the Department’s view that there is a public health basis for the curfew.

The advice also noted that recent trends indicated that the previous Stage 3 restrictions were not sufficient to stem transmission. The advice said that there were no less restrictive means reasonably available to achieve the same purpose of stemming the spread and effect of COVID-19 and that the curfew remained reasonably necessary on public health grounds.

The advice stated:

Therefore, on balance, the Directions are likely to be compatible with the rights in the Charter. However, we note that this assessment is not without doubt; in particular, there is some risk of incompatibility with respect to the evening curfew.
The Department does consider all of the measures to be consistent with promoting the right to life, as protected by s 9 of the Charter as well as the right to health which is protected under art 12 of the International Covenant on Economic, Social and Cultural Rights, to which Australia is a signatory.[81]

[81]Emphasis in original.

The advice looked at the rights that were limited by the Directions. It expressed the view that the Direction interfered with the right to liberty in s 21 of the Charter by depriving the people residing in the Restricted Areas of their liberty. The Curfew was one feature of those restrictions. However, the advice continued that the authors did not consider that the Directions deprived people of their liberty in a manner that was unlawful or arbitrary. The exceptions to it addressed the central needs of affected individuals. To the extent that the Directions did limit the right to liberty, any limitation was likely to be reasonably justified. The Directions were temporary.

The advice also addressed the restrictions on freedom of movement and the right recognised by s 12 of the Charter. The Directions imposed the Curfew on those living in the Restricted Areas and limited the number of times a person may leave their home each day, the duration for which they may leave and the distance which they may travel from their home. In this way, the Directions directly and significantly impaired a person’s ability to move freely. However that limitation was reasonably justified because:

The Directions form part of a vital suite of measures to limit community interaction and thereby minimise community transmission of the virus, and go no further than necessary. Importantly, the limitation on rights is temporary as it results from the Directions. Although having been in force for over a month, the restrictions are currently intended only to operate for a further matter of weeks in their current form, albeit subject to further extension where they remain reasonably necessary to protect public health, at which time they will be reassessed. In the present exceptional circumstances, we consider the Directions are therefore likely to be compatible with the right to freedom of movement.

The advice in a footnote referred to art 12(3) of the International Covenant on Civil and Political Rights[82] which provides for freedom of movement but provides an indication of the type of purposes for which that right may be restricted, including public health.
[82]International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171 (entered into force 23 March 1976).

The advice proceeded to consider a number of other rights including freedom of religion and cultural rights under s 14, freedom of peaceful assembly and association and freedom of expression under s 16(1), the right to equality under s 8(3), the right to privacy, family and home, under s 13(a) and, the protection of families and children under s 17(1).

Plaintiff’s submissions

The plaintiff submitted that the defendant had not satisfied the onus of establishing that the Curfew’s limitation of the right of freedom of movement was demonstrably justified under s 7(2) of the Charter.[83] The Curfew was therefore a ‘step too far’ given the other restrictions introduced to reduce COVID-19 infections. The defendant had adopted a broad brush disproportionate approach ‘simply to clamp everything down and just see if that works’.
[83]Kracke (2009) 29 VAR 1, 35 [108]; Re Application under Major Crimes (Investigative Powers) Act 2004 (2009) 24 VR 415, 448–9 [147]; R v Momcilovic (2010) 25 VR 436, 475–6 [143]–[146]; Certain Children (No 2) (2017) 52 VR 441, 497–8 [175].

The plaintiff contended that there was no evidence that the Curfew made a difference in reducing COVID-19 cases and had been introduced for law enforcement purposes. There was no need for it as an addition to the existing restrictions. The scientific and research literature did not support the need for a curfew. The defendant had no data about the social and economic effects of the Curfew. By making the Curfew Direction, the defendant acted in a way that was incompatible with Ms Loielo’s human rights.

Defendant’s submissions

The defendant relied on the principle that rights recognised by the Charter are not absolute and may be limited according to the standard of demonstrable justification in s 7(2), which is an expression of the principle of proportionality.[84] In making the PHW Act, which was enacted after the commencement of the Charter, Parliament had received a statement of its compatibility with the Charter. Parliament had concluded that the PHW Act limited rights in a way that was demonstrably justified in a free and democratic society. Parliament recognised that a potential limitation on human rights could occur if the authorised officer formed the opinion that a direction under the emergency powers was reasonably necessary to protect public health. The principles contained in the PHW Act were Parliament’s expression of a balance struck by reference to the matters contained in s 7(2) of the Charter. The proper consideration required by s 7(2)(e) of ‘any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve’ must therefore occur within the frame of what the authorised officer concluded was ‘reasonably necessary to protect public health’.
[84]Victoria Police Toll Enforcement v Taha (2013) 49 VR 1, 72 [214] (Tate JA).

The statement of compatibility of the PHW Act was tabled in Parliament which described the right to health as being ultimately concerned with the right to life which was the supreme right. Mr Andrews, as Health Minister, stated that the right to health was essential for the enjoyment of many other rights protected by the Charter, particularly the right to life.[85] The defendant contended that this was consistent with the UN Human Rights Committee’s most recent General Comment which described the right to life as a pre-requisite for the enjoyment of all other human rights.[86] In a similar vein, Blackstone listed the right to life as the primary natural right, followed by the right to liberty.
[85]Statement of Compatibility, Public Health and Wellbeing Bill 2008 (Vic) 1709.
[86]Human Rights Committee, General Comment No 36: Article 6 (the right to life), 124th sess, UN Doc CCPR/C/GC/36 (3 September 2019) [2].

The powers in s 200, which can only be exercised in times of emergency, are to be exercised to achieve the important purpose of protecting public health. The decision-maker did not have to adopt the least restrictive means available to protect public health, but her action in making the Curfew Direction had to fall within the range of reasonably available options to achieve that purpose.[87]
[87]Sabet v Medical Practitioners Board of Victoria (2008) 20 VR 414.

The defendant conceded that the judicial determination of unlawfulness under s 38(1) ‘necessarily require[s] an assessment that is closer to merits review than is usual in judicial review’.[88] The objective test of proportionality under s 7(2) of the Charter involves a greater intensity of review than is traditionally undertaken by a court in judicial review proceedings. The court may give a degree of weight or latitude to an administrative decision-maker depending on their expertise, the information they acted on and their provision of a transparent process of reasoning,[89] particularly where scientific evidence and health issues are concerned.[90] In this instance, the decision-maker, Giles, had specialist expertise pursuant to a legislative scheme. The purpose of the limitation was an evidence-based precautionary public health purpose.
[88]Certain Children (No 2) (2017) 52 VR 441, 506–7 [212]. See also, PJB v Melbourne Health (2011) 39 VR 373, 421–2 [223] (Bell J) (Patrick’s Case).
[89]Certain Children (No 2) (2017) 52 VR 441, 508 [217].
[90]See R v Secretary of State for Health ex parte Eastside Cheese Company [1999] 3 CMLR 123 [43]–[47] (Lord Bingham CJ).

The compatibility question under the first limb of s 38(1) must be decided by reference to the scope and objects of the statute conferring the discretion under which the Curfew Direction was made. The discretion that Giles exercised under s 200 was informed by the subject matter, scope and objects of the PHW Act, including the principles, was conditioned on the formation of the opinion required by s 200(1)(d), and was made by a person authorised by the Chief Health Officer to exercise that power.

Associate Professor Giles had abundant evidence on which to reach a decision that the Curfew satisfied the proportionality test and that there were no less restrictive means reasonably available to achieve the purpose of reducing the spread of COVID-19. A more geographically targeted approach had not been successful when Stage 3 restrictions were introduced. Giles was under no obligation to produce written evidence about the facts and assumptions upon which her opinion was based under s 79(1) of the Evidence Act 2008. She had relied on the best possible available evidence, being her daily experience in working with COVID-19 outbreaks, data about infections in Victoria and knowledge of the public health measures that had worked or had not worked. She concluded that the Curfew had assisted in reducing case numbers, particularly by limiting the movement of the residents of Victoria. The plaintiff had called no evidence contrary to that of Giles. To the extent that Giles was criticised for only having regard to the issue of public health, that was a correct focus because that was the purpose of the emergency powers.

Consideration of the first limb — Acts incompatible with human rights

As I emphasised in the summary at the commencement of this judgment, the protection of human rights has, at least, the same importance in times of emergency as in normal times. Human rights are not suspended during states of emergency or disaster. As well as protecting individuals, the consideration of human rights assists in thoughtful decision-making. Although, this case has been brought by one Victorian, Giles was required to give consideration, so far as possible, to the Curfew’s possible effects on residents of Victoria. It is not necessary for an identifiable individual to be affected in order for a human right to be engaged and in order for the obligations in s 38(1) to apply.[91]
[91]Certain Children (No 2) (2017) 52 VR 441, 502 [194](a).

The Charter recognises that human rights are not absolute and may be limited, according to the standard of demonstrable justification found in s 7(2). Any other limitation is not ‘under law’. Whether an action was ‘incompatible’ with human rights under s 38(1) was assessed by reference to s 7(2) of the Charter and proportionality. The burden is on the party seeking to show that the limitation is ‘demonstrably justified’ having regard to the specific matters identified in s 7(2) of the Charter. The standard of proof is high.[92]
[92]DAS v Victorian Human Rights and Equal Opportunity Commission (2009) 24 VR 415, 448 [147].

Lord Steyn in Regina (Daly) v Secretary of State for the Home Department[93] stated that the intensity of the review is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued.
[93][2001] 2 AC 532, 547–8 [27]–[28] cited in Certain Children (No 2) (2017) 52 VR 441, 507 [213].

The determination and assessment of Charter unlawfulness are closer to merits review than is usual in judicial review and require a greater intensity of review.[94] What that may require may depend on the experience and expertise of the primary decision-maker, the information that they act on and the extent to which the decision is supported and objectively justified by a transparent process of reasoning.[95]
[94]Patrick’s Case (2011) 39 VR 373, 421 [223].
[95]Certain Children (No 2) (2017) 52 VR 441, 508 [217].

In this instance, the human right of freedom of movement was being limited significantly for the purpose of protecting public health. There was an issue whether the Curfew would assist in achieving that purpose. Another important issue in applying the s 7(2) proportionality analysis was whether there was any less restrictive means reasonably available of achieving the public health objective.[96] Thus, it would be insufficient if Associate Professor Giles had decided to continue the Curfew merely because it was already in place.
[96]Ibid [471].

Giles’ reasoning was that the package of restrictions, including the Curfew, had reduced the spread of COVID-19, including by limiting the movement of people in Victoria. They had reduced from seven day rolling average of over 500 to about 40. It is true that she could not point to evidence that the Curfew itself reduced COVID-19 cases, but in the urgency of the circumstances created by the escalating COVID pandemic, Giles’ decision was not based on conclusions in medical journal articles or from analysing significant scientific evidence, as they were limited. Rather she had made a judgment based on her experience as an infectious diseases physician with added experience of COVID-19 cases.

By 13 September, the Curfew had only been in place for six weeks. While an alternative to its continuation would have been to revoke it and approve the continuation of the other Stay at Home restrictions as modified, there was equally no evidence that such a course would have continued to achieve the purpose of reducing new cases at the same rate. Another option would have been to limit the Curfew to high infection areas, but Giles considered that the experience of lockdowns in hot spot areas did not support the effectiveness of localised restrictions. Yet another option would have been to decide that the Curfew might not reduce the infection rates as people would have 15 or 16 hours, rather than 24, to shop or exercise, thereby increasing the possibility of infected people spreading the virus to others because they had less time to undertake these activities.

But, the existence of other options does not mean that they were ‘less restrictive means reasonably available to achieve the purpose’ of protecting public health. In determining what means were ‘reasonably available’, it was appropriate to consider what means had been tried, what had followed, the urgency of the situation and the risks if infection rates surged again.

Victoria was in a state of emergency and the Stay at Home Directions, including the Curfew, had been followed by a significant reduction in infections. It might have been reasonably considered that it was not the time to try alternative means of reducing infections as the Curfew did reduce the movement of people. Whether Giles should have considered that the restrictions imposed by a Curfew were no longer proportionate to their purpose was a matter of judgment, open to different assessments. A cautious or precautionary approach was to leave the Curfew as modified in place. That is what occurred until the morning this case commenced.

In the circumstances I have described and, keeping in mind that Victoria was in a state of emergency, I do not consider that there were other reasonably available means within the meaning of s 7(2)(e) to achieve the purpose of reducing infections. I consider that Associate Professor Giles’ evidence establishes that the Curfew was reasonably necessary to protect public health. I do not consider that I can take the timing of the revocation of the Curfew as undermining Giles’ decision on 13 September as to the reasonable necessity of the Curfew.

The procedural or second limb of s 38(1)
Plaintiff’s submissions

The plaintiff submitted that the defendant did not give proper consideration to the plaintiff’s human rights before the Curfew Direction was made, which is the requirement of the second or procedural limb of s 38(1) of the Charter because, first she did not understand in general terms which of the plaintiff’s rights were affected, and how they were affected by the Curfew Direction. Secondly, she did not seriously turn her mind to the possible impact of the decision on the plaintiff’s and others’ rights and the implications thereof for the plaintiff and others. Thirdly, she did not identify the countervailing interests or obligations; and fourthly she did not balance the competing private and public interests as part of the exercise of justification.[97]

Defendant’s submissions

[97]Castles v Secretary of the Department of Justice (2010) 28 VR 141 (Castles).

The defendant submitted that Giles did give proper consideration to human rights as required by the first limb of s 38(1) in the formation of her opinion of what was reasonably necessary to protect public health under s 200(1)(d) of the PHW Act. Giles had the expertise, integrity, diligence and qualifications to form that opinion in accordance with the statutory requirements. In doing so, she had given appropriate consideration to human rights. Her graph of infection rates reflected her experience of the COVID-19 data following the introduction of Stage 4 restrictions. She was an expert decision-maker informed by the principles in the PHW Act who formed the requisite opinion that the Curfew Direction was reasonably necessary to protect public health. The Court should recognise her institutional competence. Giles based her decision on the information and advice before her, on the Charter advices and a reading of the Charter.

Consideration of second limb — Proper consideration of human rights

The procedural or second limb of s 38(1) requires a decision-maker to have seriously turned their mind to the possible impact of the decision on an affected person’s human rights and the implications for that person and to identify the countervailing interests or obligations.

There is an issue of whether a health expert, such as the defendant, is able to properly balance the social and economic consequences of a decision primarily based on health considerations. However, Parliament has given the discretion to an authorised officer.

Proper consideration does not require over scrutiny, zealously by the courts, but the obligation is not satisfied by merely invoking the Charter. The review that is necessitated by the obligation to give proper consideration is a review of the substance of the decision-maker’s consideration rather than form.[98] Emerton J in Castles[99] stated that the procedural ground of s 38(1) involves:

While I accept that the requirement in s 38(1) to give proper consideration to a relevant human right requires a decision-maker to do more than merely invoke the Charter like a mantra, it will be sufficient in most circumstances that there is some evidence that shows the decision-maker seriously turned his or her mind to the possible impact of the decision on a person’s human rights and the implications thereof for the affected pers
on, and that the countervailing interests or obligations were identified.[100]

[98]See Certain Children No 2 (2017) 52 VR 441, 500–1 [187]–[191].

[99](2010) 28 VR 141.

[100]Ibid 184 [185]–[186]. See also Bare v Independent Broad-based Anti-corruption Commission (2015) 48 VR 129, 223 [288] (Tate JA).

The evidence discloses that the decision-maker, Giles, gave primary consideration to health issues, which were the express subject matter which enlivened the exercise of the s 200(1)(d) discretion. But, I accept her evidence she did refer to the human rights advices under the Charter and considered them.

There is a question whether she had sufficient time to consider the documents she received over the weekend of 12 and 13 September. But her decision was in part based on data she had received over the previous six weeks. She said, and I accept, that she considered the documents that she received and had been thinking about her decision since the previous Wednesday when she was asked to stand in for Dr Romanes. She said that it was the most important task that she had ever been asked to undertake.

Giles received legal advice that there was a risk that the Curfew was not compatible with the Charter, although on balance, no such incompatibility existed. I accept her evidence that she did consider the effects of the Curfew on human rights applying her four step analysis. Giles’ four steps were to understand the rights of the person affected by the decision, to turn her mind to the impact of the decision on human rights, to identify countervailing interests and balance private and public rights. These steps include some of the s 7(2) factors. But she also considered the importance and purpose of the limitation, by giving primary attention to risks to public health from the spread of the virus. She adopted a public health perspective using a precautionary approach — it would have been surprising if she had done otherwise. I accept that she did consider the effect of the Curfew on human rights and the effects of it on people in Victoria — she had experienced the effects of Stage 4 restrictions, herself. Her approach was that the sooner that the spread of the virus was substantially reduced, the sooner people would be able to resume their normal lives and attend to important activities such as visiting doctors and hospitals to receive health care that they had postponed because of fear of being infected. In the context of the purpose of the power and discretion that Giles was required to exercise, I consider that she did give proper consideration to relevant human rights as required by the second limb of s 38(1).

Ground four is not established.

Declaratory relief

The parties made extensive submission about whether the plaintiff should be awarded declaratory relief if she established one or more of her claims. The defendant contended that a declaration would no longer have foreseeable consequences and in the exercise of the Court’s discretion should not be granted.[101]
[101]Smethurst (2020) 94 ALJR 502.

Although this question does not now arise, in view of the extensive submissions, I will express my opinion about it.

In my opinion, this case is analogous to the New Zealand COVID-19 decision in Borrowdale[102] where the High Court granted a declaration about the announcement of a lockdown by the Prime Minister before it had been imposed lawfully by the Director-General of Health.
[102][2020] NZHC 2090.

If I had found that the plaintiff had established a breach of her Charter rights, I would have granted her an appropriately worded declaration to reflect that finding even though the Curfew has been revoked. I would not readily regard such a declaration of unlawful limitation of human rights as having no foreseeable consequence.

Conclusion

The proceeding must be dismissed.

[2020] VSC 722

2 November 2020